Rajasthan High Court - Jodhpur
Bhanwar Khan vs State on 22 April, 2019
Bench: Sandeep Mehta, Narendra Singh Dhaddha
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 1180/2015
Bhanwar Khan S/o Ramjan Khan B/c Mohmadan R/o Rodawalai
District Hanumangarh
(Presently lodged in Central Jail, Bikaner)
----Appellant
Versus
The State of Rajasthan
----Respondent
For Appellant(s) : Mr. G.R. Bhari
For Respondent(s) : Mr. Anil Joshi, P.P.
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA
Judgment
22/04/2019
(BY THE COURT : PER HON'BLE MEHTA, J.)
The accused appellant Bhanwar Khan has been convicted and sentenced as below vide the judgment dated 28.10.2015 passed by the learned Additional Sessions Judge No.2, Hanumangarh in Sessions Case No.28/2015.
Offence for Sentence awarded which convicted 302 IPC Imprisonment for life alongwith a fine of Rs.5000/- and in default of payment of fine, further to undergo two months' rigorous imprisonment. 498-A IPC Rigorous imprisonment of two years alongwith a fine of Rs.2000/- and in default of payment of fine, further to undergo one month's rigorous imprisonment. (Downloaded on 27/06/2019 at 11:59:08 PM) (2 of 11) [CRLA-1180/2015]
Being aggrieved of his conviction and sentence, the accused appellant has preferred the instant appeal under Section 374 (2) CrPC.
Brief facts relevant and essential for disposal of the appeal are noted hereinbelow.
Smt. Paramjeet Kaur (P.W.1) submitted a typed report (Ex.P/2) to the Station House Officer, Police Station Mahila Thana, Hanumangarh Junction on 21.04.2013 at 2.05 p.m. alleging inter alia that her daughter Smt. Naseem Bano was married to Bhanwar Khan S/o Ramzan Khan (the appellant herein) on 16.07.2006. Gold ornaments, refrigerator, television, double bed, almirah, cooler and other household articles were given by way of dowry at the time of marriage. However, Bhanwar Khan and his parents were not satisfied with the dowry articles and started demanding a motorcycle from Smt. Naseem Bano. The complainant succumbed to the relentless demands of the accused and gave him a motorcycle. However, his greed was not satisfied and he started demanding cash. For the last few months before lodging of the report, Bhanwar Khan and his parents were pressurizing Smt. Naseem Bano for a plot of land. Thinking of her daughter's better future, the complainant purchased a plot worth Rs.3,85,000/- at Roopnagar, Hanumangarh Town and gave the same to her daughter. The complainant came down to Roopnagar, Hanumangarh Town to meet her daughter, who was residing with her husband in a rented house. At that time, Smt. Naseem Bano confided in the informant that her husband used to beat her brutally after gagging her mouth and lately she was being traumatized saying as to why the plot had been purchased in her (Downloaded on 27/06/2019 at 11:59:08 PM) (3 of 11) [CRLA-1180/2015] name and not in the name of Bhanwar Khan. He was also demanding that money for constructing the house should be coughed up by her parents. The complainant tried to counsel Bhanwar Khan that her daughter should not be harassed and that in future, she would satisfy his demands by giving money for construction of the house. On the previous night at 2.30 a.m., she received a call of Gulam Mohd., maternal uncle of Bhanwar Khan, who told her that Bhanwar Khan had throttled his wife (the complainant's daughter Smt. Naseem Bano) and had killed her. On receiving this information, the complainant accompanied with her husband Vikarm Singh, Jeth Balveer Singh and Bhagwan Singh, Roshan, Shobhraj and others reached Hanumangarh Town and went to the morgue, where the body of Smt. Naseem was lying and noticed various bruises, abrasions etc. visible on the neck and legs of Smt. Naseem. It was alleged in the report that Smt. Naseem had been killed by Bhanwar Khan.
On the basis of this typed report, a formal FIR No.78/2013 (Ex.P/3) was registered at the Police Station Mahila Thana, Hanumangarh Town for the offences under Sections 304-B, 498-A and 120-B of the IPC. The requisite formalities of investigation were carried out. The dead body of Smt. Naseem Bano was subjected to postmortem by the Medical Jurist of the Government Hospital, Hanumangarh Town, Dr. Shankar Lal Soni (P.W.11), who issued the postmortem report (Ex.P/13) indicating presence of pertinent marks of strangulation on the neck of the lady and bruises on her legs. Upon opening the neck, blood was seen effused in the subcutaneous tissue of the neck muscles. Right greater cornua of the hyoid bone was fractured and a red-
coloured contusion was seen at the location. The injuries were
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stated to be antemortem in nature and sufficient in the ordinary course of nature to cause death. After conducting usual investigation as per law, the Investigation Officer proceeded to file a charge-sheet against the accused appellant for the offences under Sections 304-B, 498-A and 302 IPC in the court of the concerned Magistrate.
Since the offences were Sessions triable, the case was committed and transferred to the Court of the learned Additional Sessions Judge No.2, Hanumangarh for trial. The trial court framed charges against the accused appellant for the above offences, who pleaded not guilty and claimed trial. The prosecution examined 18 witnesses and exhibited 38 documents in support of its case. Upon being questioned under Section 313 CrPC and when confronted with the allegations appearing against him in the prosecution evidence, the accused appellant denied the same and claimed that the witnesses were deposing against him out of enmity and false case had been foisted against him for the same reason. He was not at his house on the date of the incident and gone to Tehsil Ladnu for doing his job. His maternal uncle Gulam Mohd. called him on phone and summoned him to the village. Three documents were exhibited, but no oral evidence was led in defence. After hearing the arguments of the prosecution and the defence and upon appreciating the evidence available on record, the learned trial court proceeded to acquit the accused appellant of the charge under Section 304-B IPC observing that the prosecution could not produce proper evidence to satisfy that Smt. Naseem Bano was married to the accused Bhanwar Khan within a period of seven years of her unnatural death. However, finding the evidence of the prosecution to be (Downloaded on 27/06/2019 at 11:59:08 PM) (5 of 11) [CRLA-1180/2015] cogent, clinching and convincing for the charges of murder and cruelty, the accused was convicted and sentenced as above for the offences under Sections 498-A and 302 IPC by the impugned judgment dated 28.10.2015, which is assailed in this appeal.
The principal argument of Mr. G.R. Bhari, learned counsel representing the appellant, for challenging conviction of the appellant as recorded by the trial court was that there is no eye-witness of the incident. As per him, the prosecution failed to lead satisfactory direct or circumstantial evidence to show that the appellant throttled his wife Smt. Naseem Bano and thereby murdered her. He urged that once the charge under Section 304- B IPC was not found established and the accused appellant was acquitted of the said charge, the conviction of the appellant for the offence under Section 302 IPC has also to fail. He further urged that the two minor daughters of the appellant and the deceased were also present in the house at the time of the incident. They would have been the prime witnesses to divulge the true story. As per him, the prosecution intentionally withheld these two witnesses and did not present them in the witness box and thus, adverse inference needs to be drawn against the prosecution. On these grounds, he implored the court to accept the appeal and acquit the accused appellant of the charges.
Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by the appellant's counsel. He urged that the trial court acquitted the accused appellant of the charge under Section 304-B on absolutely flimsy and unsustainable grounds. As per him, the evidence of the first informant Smt. Paramjeet Kaur (P.W.1) and Vikram Singh (P.W.4), mother and father respectively of the deceased, has remained (Downloaded on 27/06/2019 at 11:59:08 PM) (6 of 11) [CRLA-1180/2015] uncontroverted on the aspect that the marriage of the appellant with Smt. Naseem Bano was solemnized within a period of seven years form her death. He, thus, submitted that the trial court erred in acquitting the appellant of the charge under Section 304- B IPC. He further contended that the conviction of the appellant for the offences under Sections 498-A and 302 IPC is not liable to be interfered with because there is ample evidence emanating from the statements of Smt. Paramjeet Kaur (P.W.1), Vikram Singh (P.W.4), Gulam Mohd. (P.W.7) and Smt. Bhaga Devi (P.W.8) (maternal uncle and maternal aunt respectively of the appellant), and Razzak Mohd. (P.W.9), which establishes beyond all manner of doubt that the accused appellant used to indulge in meting out harassment and humiliation to his wife (Smt. Naseem Bano, the deceased) on account of demand of dowry, that on the fateful night, he was present in the house with her and the fact of her being throttled to death within the confines of the house was within the exclusive knowledge of the accused appellant. Thus, as per learned Public Prosecutor, the learned trial court was absolutely justified in invoking the reverse burden of proof provided by Section 106 of the Evidence Act and in convicting the appellant for the offence under Section 302 IPC. He submitted that the testimony of the Medical Jurist Dr. Shankar Lal Soni (P.W.11) is categoric and emphatic establishing the fact that Smt. Naseem Bano was subjected to great degree of violence and was strangulated to death. He, thus, implored the court to dismiss the appeal and uphold the conviction of the appellant and affirm the sentences awarded to him by the trial court.
We have given our thoughtful consideration to the arguments advanced by the learned counsel representing the (Downloaded on 27/06/2019 at 11:59:08 PM) (7 of 11) [CRLA-1180/2015] appellant as well as the learned Public Prosecutor and have threadbare sifted the material available on record.
We find that though in the FIR, the first informant alleged that Smt. Naseem Bano was married to the appellant on 16.07.2006, but the trial court rightly held that no convincing documentary or oral evidence was brought on record by the prosecution to establish this fact. A discrepancy was also noticed by the trial court in the police statement of Vikram Singh (P.W.4) (Ex.D/3), wherein the date of marriage of Smt. Naseem Bano is mentioned as 16.07.2005. In this background, we feel that the trial court was absolutely justified in acquitting the accused appellant of the charge under Section 304-B IPC because the prosecution could not establish beyond all manner of doubt that the marriage of the appellant with the deceased was solemnized within a period of seven years of her unnatural death. Thus, we agree with the finding recorded by the trial court to this effect.
It is an uncontroverted position that the appellant and his wife Smt. Naseem Bano used to reside with the deceased in the premises rented out by his maternal uncle Shri Gulam Mohd. (P.W.7) in the Roopnagar area of Hanumangarh Town alongwith their two minor daughters. There is clinching evidence on record in the form of the statements of Smt. Paramjeet Kaur (P.W.1) and Vikram Singh (P.W.4) that right from the date of the marriage, till the homicidal death of Smt. Naseem Bano on 20.04.2013, the accused appellant was continuously maltreating and traumatizing the deceased on account of various demands. The parents of the deceased mostly succumbed to these demands and fulfilled the same so that their daughter's marriage could be saved. However, (Downloaded on 27/06/2019 at 11:59:08 PM) (8 of 11) [CRLA-1180/2015] the greed of the accused was unending. As per the evidence of Dr. Shankar Lal Soni (P.W.11) discussed hereinabove, apart from the various injuries of strangulation noticed on the neck of the deceased with associated fracture of right cornua of the hyoid bone, bruises were also seen on the dead body. Thus, without any doubt, the death of Smt. Naseem Bano was homicidal in nature and we have no hesitation in holding that she was first beaten black and blue and was then brutally strangulated. Gulam Mohd. (P.W.7) and Smt. Bhaga Devi (P.W.8) are the maternal uncle and aunt respectively of the appellant herein. They stated that they had given a part of their house to accused appellant and his family on rent and this aspect of their testimony is unchallenged. Both of these witnesses categorically deposed that on the fateful evening of 20th April, Bhanwar Khan came to his rented premises at about 9 to 9.30 p.m. He went inside his room. The witness Gulam Mohd. woke up at 12 o'clock to ease himself and saw that the room of Bhanwar Khan was illuminated and he was talking to someone on mobile. The witness called out to Bhanwar Khan, who replied in a subdued tone. The witness noticed something amiss and thus, he woke up his wife. Both went to the room of Bhanwar Khan and knocked the door. Bhanwar Khan opened the door of his house with great hesitation. They saw that Bhanwar Khan's wife was in bad shape. Bhanwar Khan did not say anything. Thereafter, he lifted his wife, boarded her on to the motorcycle. Razzak Mohd. sat as the pillion rider and the lady was taken to the hospital. Gulam Mohd. and his wife followed them. Both the witnesses admitted in their cross-examination that while the spouses were living in their house, they never saw them (Downloaded on 27/06/2019 at 11:59:08 PM) (9 of 11) [CRLA-1180/2015] quarrelling. Naseem used to do all the household chores. The two daughters of Bhanwar Khan were studying at Rodawali School. Bhanwar Khan used to take the girls with him everyday to drop them at school and would bring them back home in the evening. The witnesses categorically denied the suggestion that Bhanwar Khan was not present in the house on the fateful night and that he had been summoned to the place of occurrence by giving him call in the next morning. The witness Gulam Mohd. categorically stated that Bhanwar Khan was apprehended at the hospital. A suggestion was given by the defence in the cross- examination conducted from the witnesses Paramjeet Kaur (P.W.1), Vikram Singh (P.W.4), Gulam Mohd. (P.W.7) and Bhaga Devi (P.W.8) that Naseem was having some kind of relationship with a man named Amit. If this suggestion is considered as having even a tinge of truth, it becomes clear as day light that the accused was trying to impute an extramarital relationship to the deceased. Manifestly, the knowledge about relationship of this nature would provide a strong motive to the accused to eliminate his own wife.
From the discussion made hereinabove, we are duly satisfied that the prosecution has been able to prove beyond all manner of doubt by leading cogent, clinching and convincing evidence that the accused appellant was present in the house with his wife deceased Smt. Naseem Bano in the night intervening 20/21.04.2013 when she was brutally beaten and throttled to death. The non-examination of the two minor daughters of the appellant and the deceased during trial is immaterial because the girls were aged 7 years and 5 years and thus, would not be (Downloaded on 27/06/2019 at 11:59:08 PM) (10 of 11) [CRLA-1180/2015] mature enough to give evidence in a criminal trial. It is quite possible that the girls might have slept through the incident and may not even be aware of the sequence. Thus, non-examination of the girls as witnesses would not matter at all. It is, thus, certain that the accused was present in his house with his wife on the fateful night alongwith their minor daughters. Smt. Naseem Bano was violently assaulted and was throttled to death in the night behind the closed doors of the house and thus, the circumstances in which Smt. Naseem Bano received these injuries would be in the exclusive knowledge of the accused appellant. The onus of explaining these injuries was undoubtedly upon the appellant, who failed to offer even a semblance of explanation in this regard and thus, the presumption under Section 106 of the Evidence Act definitely operates against the appellant herein, who failed to discharge the same.
In this background, learned trial court was perfectly justified in raising the presumption of Section 106 of the Evidence Act against the appellant and holding him guilty of the charge under Section 302 IPC. In addition thereto, we are also satisfied that the evidence available on record is ample and wholesome so as to affirm the conviction of the appellant under Section 498-A IPC as well. We find that the trial court appreciated the evidence available on record in absolutely just and apropos manner while recording the conviction of the appellant by the impugned judgment dated 28.10.2015, which does not suffer from any infirmity or illegality whatsoever.
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(11 of 11) [CRLA-1180/2015] Hence, we find no merit in the instant appeal, which is dismissed as such. The record be sent back to the trial court forthwith.
(NARENDRA SINGH DHADDHA),J (SANDEEP MEHTA),J 6-Pramod/-
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